Do I have to Probate the Homestead Property?

We have been answering this question repeatedly over the last couple of months.

If a homestead property is not a probate asset, why does it have to go through probate?

Great question.

If mom’s house was truly her homestead over the last few decades, you wouldn’t be wrong to assume that it was considered her homestead when she passed. She was granted a homestead tax exemption on the property and she didn’t own any other real estate anywhere else in the world.

So you’re probably correct, it’s her homestead!

BUT…

In the probate world, there’s a concept known as “homestead determination for the purposes of descent and devise”.

What this means is that a probate court must determine (think “declare”) the property as a homestead property in order to release it from the stranglehold of the probate court.

In a nutshell, to inherit or take title to mom’s homestead, the proper procedure is to open probate, have the judge determine the property to truly be a homestead property “for the purposes of descent and devise”, and THEN, it’s yours.

One other benefit from going through this process is that it protects the transfer of the homestead property to the heirs or beneficiaries from claims of creditors. In effect, by officially determining the property to be a homestead, the court is exempting the property from any debts against the estate. (Not including the mortgage or taxes owed.)

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